“ Despite our enquiry to the authorities of Botswana, about whether or not they gave an assurance to the South African Government that Samotse will not face the death penalty, we still have not received a response. In a context where secrecy has surrounded the way the death penalty is carried out in Botswana, we are concerned for the safety and well-being of Mr. Samotse ” declared Alice Mogwe, DITSHWANELO Director and FIDH Deputy Secretary General.
On August 13, 2014, South African Immigration officials deported Mr. Edwin Samotse to Botswana, where he is charged with murder. If convicted by the Botswana High Court, Mr. Samotse could be sentenced to death and executed. His deportation was carried out while, on two occasions (Mohammed, 2001 and Tsebe, 2012), South Africa’s Constitutional Court has confirmed the right of a person charged with capital offences not to be extradited to a country where he/she could face the death penalty and subsequent execution, without an assurance against such being imposed or executed. On September 23, 2014, the High Court sitting at Pretoria confirmed those decisions by declaring Samotse’s deportation unlawful and unconstitutional.
For Jacob Van Garderen, National Director of LHR, which joined the Samotse case before the High Court, “ the decision of the High Court is consistent with the internationally recognised practice not to extradite someone to a country where he or she could face the death penalty and be executed. Our courts have already set similar precedents and we expect this decision will constitute the basis for a well defined procedure of non-removal that would be strictly observed by the relevant South African authorities ”.
In its decision, the High Court noted the undertaking given by the Minister of International Affairs and Cooperation to continue seeking written assurances from the authorities of Botswana that the death penalty will not be imposed against Edwin Samotse and, if imposed, that it will not be executed. The Court further called upon South African Minister of Home Affairs to enact “Standing Operation Procedures” stating that it is unlawful to deport or surrender a foreign national facing the risk of being subjected to the death penalty if deported or surrendered without the requisite assurance being obtained. The Court has required the Minister to report back on progress made in this regard as well as the outcome of the Department’s investigation into the unlawful deportation. Our organisations welcome this decision and call upon South African authorities to ensure that a comprehensive “Standing Operation Procedure” is put in place without further delay, that it is widely disseminated to all the relevant services and properly implemented.
As the World Day Against Death Penalty approaches (October 10, 2014), our organisations, which oppose the death penalty for all crimes and under all circumstances, reiterate their call upon the authorities of Botswana to envisage the adoption of a moratorium on the death penalty as a first step towards abolition.
Background information
Mr Edwin Samotse was arrested in Botswana in March 2010 on a charge of murder. He fled to South Africa on 14 March 2011. He was incarcerated in the Polokwane Police Station for the purposes of extradition proceedings. After escaping from custody he was re-arrested and sentenced to six years’ imprisonment for escaping on 22 March 2012.
On 3 July 2014, the Minister of Justice and Correctional Services issued an order under paragraph 11(b) of the Extradition Act stating that the applicant should not be surrendered to stand trial on a murder charge in Botswana. This order was given based on two earlier Constitutional Court cases, Mohammed (2001) and Tsebe (2012), in South Africa’s highest court which held that in the absence of an assurance, the South African government may not lawfully extradite, deport or otherwise remove individuals to countries that still impose the death penalty without the requisite assurances.
The decision of the Minister of Justice and Correctional Services was communicated to officials at the Department of Home Affairs on 6 August 2014. However, on 13 August 2014 officials from the Department of Home Affairs secured the release of Mr Samotse from the Polokwane Police Station and proceeded with his deportation, handing him over to Botswana authorities.
On September 23, 2014, the South African High Court declared the deportation of Samotse unlawful and unconstitutional and that “the conduct of the immigration officials […] infringed [Edwin Samotse’s] rights to human dignity, to life and not to be subjected to cruel, inhuman or degrading treatment” […] because they deported/surrendered him to officials of Botswana in the absence of the requisite undertaking by that country’s government not to seek the imposition of the death penalty in the event [the person concerned] being found guilty of murder; or if imposed, that the death penalty would not be carried out”.
The South African Department of Home Affairs has since issued a press statement condemning the actions as unlawful and unconstitutional. The Department has launched an investigation into the circumstances surrounding Mr Samotse’s removal from custody and deportation to Botswana and will report back to the High Court on the outcome of that investigation. So far three of the officials involved in the matter have been suspended.